UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30663
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NO FIRST NAME LAST NAME UNKNOWN,
also known as Pablo Garay Aponte,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(99-CR-228-2-D)
February 26, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Appellant appeals his convictions for conspiracy to possess and
possession with intent to distribute more than five kilograms of
cocaine, and for making a false material statement as to his identity
to the Drug Enforcement Administration. He maintains: the evidence
was insufficient to convict him of the drug charges because he was
unaware that the automobile in which he was a passenger had a hidden
compartment containing the cocaine; and the district court violated
his right to confrontation by admitting into evidence documents which
had not been properly authenticated.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Appellant moved for a judgment of acquittal at the close of the
Government’s evidence and did not present any evidence. Therefore,
in evaluating the sufficiency challenge, we must determine “whether
any reasonable trier of fact could have found that the evidence
established the essential elements of the crime beyond a reasonable
doubt”. United States v. Ortega Reyna, 148 F.3d 540, 543 (5th Cir.
1998). In doing so, we consider the evidence in the light most
favorable to the verdict. Id.
Upon our review of the record, there was sufficient evidence
from which the jury could infer that Appellant knowingly conspired to
possess, and knowingly possessed, the cocaine. Among other things,
the evidence of Appellant’s guilty knowledge included: testimony that
the vehicle, in which Appellant traveled for approximately five
hours, smelled “overwhelming[ly] sweet”; Appellant’s possession of a
remote-control device that, when used in conjunction with the
defroster switch, activated the lock on the hidden compartment; and
Appellant’s use of false identification. See, e.g., United States v.
Olivier-Becerril, 861 F.2d 424, 427 (5th Cir. 1988) (coffee and
garlic placed in trunk to mask narcotics odor permitted inference of
knowledge of narcotics presence in vehicle); United States v. Kalish,
690 F.2d 1144, 1155 (5th Cir. 1982) (defendant’s attempt to conceal
identity from arresting officer by use of alias relevant as proof of
consciousness of guilt), cert. denied, 459 U.S. 1108 (1983).
Concerning the second issue, the admission of evidence is
reviewed for abuse of discretion. FED. R. EVID. 103; United States v.
2
Skipper, 74 F.3d 608, 612 (5th Cir. 1996). Appellant challenges the
admission of documents and photographs from Puerto Rico and an FBI
fingerprint card that supported the false identification charge.
Appellant failed, however, to include the challenged documents in the
record on appeal. Therefore, we will not consider the issue. See,
e.g., Powell v. Estelle, 959 F.2d 22, 26 (5th Cir.), cert. denied,
506 U.S. 1025 (1992). In the alternative, the evidentiary challenges
lack merit.
First, the district court found the copy of the Puerto Rican
police report was certified, and the photographs were appended to it.
Even if the document is not self-authenticating under Federal Rule of
Evidence 902(4), the court did not abuse its discretion in admitting
it; testimony as to the chain of custody of the document, combined
with its internal indicia of reliability, justified admission. See
United States v. Jimenez Lopez, 873 F.2d 769, 772 (5th Cir. 1989).
Second, Appellant did not object to the admission of the FBI
fingerprint card; therefore, we review only for plain error. E.g.,
United States v. Johnston, 127 F.3d 380, 392 (5th Cir. 1997), cert.
denied, 522 U.S. 1152 (1998). There was sufficient circumstantial
evidence of the card’s authenticity. See Jimenez Lopez, 873 F.2d at
772. Accordingly, Appellant has shown no error, plain or otherwise.
In short, Appellant was not denied his Sixth Amendment right to
confrontation. See Butts v. Wainwright, 575 F.2d 576, 578 (5th Cir.
1978).
AFFIRMED
3